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Archive for May, 2013

During the debate on the Fisheries Minister's budget vote, Pieter van Dalen (DA, MP) stated that he had been informed that Minister Rob Davies had been instructed by Cabinet to rescue fisheries from the woeful Tina Joemat-Pettersson.

Van Dalen now advises that he can confirm that Minister Rob Davies has in fact been deployed to assume a number of key responsibilities and functions from Joemat-Pettersson. It is of course entirely unclear how this "deployment" is to function in law and in practice. Fisheries management is already schizophrenic with functions under the Marine Living Resources Act split between the fisheries and environmental affairs ministers.

Instead of dismissing Joemat-Pettersson, will the President really act to compound the confusion and mayhem by adding a third minister to the MLRA pot? Imagine, being an official at DAFF? Who is your Minister!

The wonderful confusion and mayhem that is our government. Guided solely by patronage networks and self interest.

Thank-you Tina Joemat-Pettersson

Thank-you Tina Joemat-Pettersson and her cadres at DAFF (including Ms Mymoena Poggenpoel) for helping to collapse the South African lobster industry, particularly the nearshore artisinal fishery. Food Lovers Market has announced that it will no longer be selling the famed West Coast Rock Lobster in its stores.

One can assume that all the major retailers, leading hotels and restaurants will follow suit.

Food Lover's Market has announced that it will stop selling West Coast Rock Lobster in its stores. This is in response to the recent reports of the dire state of the West Coast Rock Lobster resource. This means that Food Lover's Market will no longer be purchasing Rock Lobster for resale and will sell out its existing stock - as of 15 April 2013 it will no longer stock the product.

This decision is in line with Food Lover's Market's Sustainable Seafood Policy and Commitments which were developed as a key component of its partnership with WWF-SASSI. Visit here for more information
Minister Tina Joemat-Pettersson's reckless and unlawful conduct last year which saw her department's managers unlawfully amend the west coast rock lobster TAC and thus ignore her own department's scientific advice, has now resulted in the WWF-SASSI programme downgrading lobster from its green list to orange, effectively threatening the continued export of lobsters to the EU, North American and other markets concerned about sustainability. This of course will not impact exports to China. 

The downgrading will certainly hit small-scale lobster fishers the hardest and is yet another indication how - despite all the empty populist rhetoric from this Minister about addressing poverty and unemployment and empowering small-scale fishers - Minister Joemat-Pettersson and her band of deployed cadres are without doubt the greatest threat to the sustainability of the SA fishing industry (large and small-scale).

By listing lobster on the orange list, SASSI is effectively telling consumers to not eat the famed west coast rock lobster and instead seek an alternative and more sustainable option. This listing will be devastating for legal small-scale and interim relief quota holders who will now find it impossible to sell their catches locally to responsible hotels and restaurants. The effect will be that small-scale fishers will be increasingly forced to turn to industrial operators who have the resources to pack lobsters for the export market in China and thus reduce incomes further and increase reliance on big industry. So much for small-scale fisher empowerment, Minister! (or is this consequence intentional and by design?)

The WWF emphasised that “[t]he sustainable and responsible management of South Africa’s marine resources needs evidence-based decision making. This assessment process has shown how the lack of an observer programme and regular at-sea enforcement as well as inconsistent biomass surveys can negatively impact the sustainable management of our fisheries.”

Considering the rate at which inshore fish stocks have been descimated under this admionistration's reign, the 2012 small-scale fishing policy will shortly be rendered unimplementable because of a lack of nearshore fish - never-mind the absence of a coherent fisheries management plan. Period. 

Fisheries Minister’s Budget 2013

The Fisheries Minister put her department's budget to Parliament on 29 May 2013 for the annual budget vote, which was subsequently approved by an ANC-led majority vote. 

What, if anything does the budget say? Well, it actually says nothing of substance. Did we really expect anything of substance from this Minister? 

The only notable bit of news is that the fisheries budget is set at R434 million including salaries and vessel operational and management costs. The Minister's budget was silent on four key crises afflicting her department. Not a word was said on -

  • the fishery patrol and research vessels, their status, what repairs have been effected to them to date, at what cost, and when they are expected to sail. Silence.
  • the status of the observer programme which is supposed to be up and running according to DAFF's undertakings to the Marine Stewardship Council by June 2013 (ie by next week). Feike understands that the observer programme tenders have now lapsed and the department has slashed the observer programme budget, which could render the programme obsolete. Silence.
  • rampant poaching afflicting abalone, lobsters and sharks (for fins). Silence. 
  • staff vacancies including the ever-vacant posts of DDG of Fisheries (currently occupied on an acting basis by a person with a Grade 12 qualification only and no fisheries management knowledge or experience but he is a senior member of the ANC's Military Veterans) and head of fisheries management. Both of these posts are critical to any successful rights allocation process. Silence. 
Talking about rights allocation, the Minister barely even mentioned this most important process that is supposed to under full swing presently but actually lurches from one ad-hoc process, event and decision to another. This BLOG has repeatedly stated that the current rights allocation process is chaotic and unlawful. This would perhaps explain the Minister's refusal to say anything substantial about it. There is nothing decent to say about it especially since it is now openly opposed by academics, small-scale fishers, NGO's and industry. The only apparent praise singer for the Minister is one Timothy Jacobs of the ANC Western Cape Economic Transformation and Rural Development Sub-committee.

Further, staying with the rights allocation process, the Minister failed to even mention the budget for this process (considering that this was a budget vote and the 2013 rights allocating process would be the single most expensive line item). 

The Minister actually spent more time thanking her children and child minder than she spent addressing fisheries issues. In our view, the budget speech was exactly what we have come to expect from the fisheries department and its Minister.  Empty and pointless.

Perhaps the most useful bit of information came from Pieter van Dalen of the DA who mentioned during the debate component of the budget presentation that Minister Rob Davies has been instructed by Cabinet to intervene in the current chaos caused by Tina Joemat-Pettersson at Fisheries. Hopefully this leads to Joemat-Pettersson's removal. [She could be appointed CEO of I&J as we hear their CEO has stepped down (he was a aging white male - the worst kind there is) or she could even be appointed Editor of the Cape Times now that Sekunjalo has bought (Soon Not So) Independent Newspapers]. 

Below is Pieter van Dalen's (DA, MP) fisheries budget speech. The DA did not support the DAFF budget vote. The Minister's complete budget speech is available at www.daff.gov.za

"Mr Chairperson
The Fishing Communities are suffering tremendously.  My experience with them has made me realise that Government is failing them dismally. Today I want to dedicate my speech to the fishing community of Paternoster. Recently two fishermen from Paternoster got lost at sea for three days. Christie and his son Brendon had to suffer this hardship and near-death experience because of the ill-defined and badly-conceptualised policies of the Department of Fisheries. 
Ek wil hulle welkom heet hier vandag Christie en Brenden Jordaan is die twee vissermanne wat weggeraak het en na 3 angswekkende dae op die see in dik mis weer teruggevind is. By hulle is hulle vrou en moeder Brenda wat self 3 dae beproef is en ander vissers Pieter Coraizin, Naomie en Charls. Voorsitter hierdie mense is die sout van die aarde en is hoogs gespesialiseerde vakmanne in die gebied van visvang. Hulle spandeer die grootste gedeelte van hulle lewe op die see. Hulle is Suid Afrika se vissermanne. Maar voorsitter in die nuwe Suid Afrika word hulle gesien as plakkers ,“poachers” en as armlastig. Hierdie mense van Parternoster is moeg gebaklei om hulle lewenstandaard te handhaaf. Hulle kinders en families ervaar die vernietigende effekte van die wetgewing van die department. 
Paternoster en sy vissermanne is n hegte gemeenskap wat saam bly is as die vis loop en saam huil as van hulle vissermanne en kinders nie weer terugkeer van die see nie. Hulle trotseer elke dag die gevaarlike waters van die see om kos op die tafel sit en ‘n ekstra geldjie probeer verdien om die kinders skool toe te stuur en om mediese hulp te kry as hulle siek is. Hulle het agteruit gegaan in die nuwe Suid Afrika en is nou geklassifiseer as “poacher’s en kriminele”. 
Hoekom, Agbare Minister, word hulle hoogs gespesialiseerde kennis nog nie erken en het u nie hulle hand gevat om hulle menswaardighied terug te gee nie. Hulle vra regtig nie so baie nie. Voorsitter. U het vandag my versekering dat ek dit nou my missie gaan maak en gaan baklei dat die bloed so loop in hierdie parlement om hierdie onreg teen ons vissersgemeenskappe reg te stel.  
First I will fight for these fishermen to be recognised for the highly specialised task they do. They must be recognised for the important role they have to play in the food security of South Africa. We need to recognise their skills and give them recognition of prior learning against existing unit standards. We must get schooling institutions to put fishing on their curriculum as a subject. Schools in coastal areas must make it interesting for learners to stay in school and the model of FET institutions that focus on agriculture should be extended to cover fisheries. I will go out and engage the industry to ensure that training and assessment are made accessible and delivered locally. Furthermore, local experts should be trained and employed as assessors to ensure authentic expertise. And local indigenous knowledge should be consulted in the generation and development of new and further unit standards. 
Secondly I will fight to remove the restrictions of office hours on our fishermen. Did you know that this department and yes you honourable Minister has made it law that you may only catch fish in office hours as the inspectors only work office hours. How I ask you minister is it possible that you expect the fishermen to only work office hours. The tide, the wind, the mist and fish do not keep office hours and don’t listen to your commands. The fish actually bite very early in the morning and the wind is on its calmest at 2 am. This is the time when fishermen usually all over the world go to sea. Usually by the time you Hon Minister wake up the fisherman are on their way back to shore. This is now punishable with a fine of R2000. This is a disgrace.  
Thirdly you have stopped the fishermen to catch more than one species per trip. So what now happens is that the fisherman has to decide beforehand what it is he wants to catch? If it is rock lobster he must take his nets and he is not allowed to have his net onboard if he goes out for line fishing. So if the fish don’t bite the day they cannot drop their nets on their way home and catch some rock lobster as they have been doing all there life. This makes it virtually uneconomical to fish the 167 kg that you have decided that they must live off. The petrol price is up and this has forced them to now steal more to just survive and pay for the petrol which incidentally includes a lot of levies for the roads and road accident fund of which they have no benefit. A’ but they can claim it back or get a rebate from SARS you will say. But minister this 167kg would translate to about R25 000.00 per year and therefore you don’t qualify to pay or claim back from tax. Take of your cost of going to sea and buying your petrol, bait and safety equipment then they are left with less than R10 000.00 per annum. Nobody can live, send their children to school and hospital on this pittance. This must be relooked at and I suggest that 500 Kg per year will go some way in solving this problem and be sufficient in this day and age. 
Voorsitter dit bring my nou na die punt van die nuwe Kleinskaalse Vissers beleid wat u voorstel. U wil he dat daar weer teruggegaan word na Ko-operasies wat ons al telkemale in SA probeer het en nie werk nie. Sien u wil nie regtig na die welstand van die vissers omsien nie. U wil he dat hulle hulle kwotas in een pot gooi en dan weer moet gaan baklei vir hulle deel. Dan wil u he dat hulle die bietjie geld wat hulle nou verdien moet deel met die hele gemeenskap om sodoende almal n stukkie te gee. Hierdie plan is gedoem om te faal soos die geskiedenis ons geleer het. Verder agbare Minister gaan u regstreeks teen die bevinding en aanbeveling van die Nasionale ontwillelings plan en die van hierdie kommitee soos gemaak op 16 May 2012 en deur hierdie parlement bekragtig is om nie Ko-operasies in te stel nie. Hoe durf u om te dink dat u beter as die vissermanne en hierdie parlement weet wat die beste is.  
Die visie van die nuwe beleid is dat meer mense gaan regte  kry en dat dit al die sosiale problem van die land gaan oplos. Dit is beloftes wat u gemaak het Agbare Minister en die verwagting is nou gevestig. Die realiteit is egter dat die vis voorraad onder geweldige druk is en dat die kwotas alreeds te min is. Kan u ons miskien antwoord en meedeel waar hierdie klomp vis vandaan gaan kom wat u belowe het of gaan u die kwotas kleiner maak as wat dit nou is? 
Voorsitter daar is n ou Chinese gesegde wat sê: Gee 'n man 'n vis, dan voer  jy hom vir 'n dag. As jy hom 'n visstok gee om mee vis te vang, dan voer hy homself vir 'n leeftyd. Ongelukkig het u soos die meeste mense van Suid Afrika, sodra hulle ryk, geleerd is en n magsposisie beklee, hulle rug op hulle eie mense draai, en gerieflikheids onthalwe vergeet waar U vandaan kom. Dit sal my misie wees om die vissermanne te bemagtig om hulle self uit armmoede te haal en van die welsyn sisteem af te haal sodat hy na homself en sy familie kan omsien en sodoende sy menswaardigheid terug te kan eis en net soos die meeste Suid Afrikaners n trotse patriot te kan wees. Dit was duidelik te veel van u gevra Agbare Minister. Indien u regtig wou sou u met die mag wat u nou tot u beskikking het dit maklik kon verander. Waarom het u dit nie verander nie? Kan u dit aan die vissermense van Paternoster verduidelik in plek om Politiek te praat en almal behalwe uself te blameer. Politiek kan nie gevang word nie. Politiek kan nie verhandel word nie. Politiek kan ook nie geeet word nie. 
Ons verwelkom u aankondiging gister vir die uitstel van die komentaarlewering datum en publieke deelname prosese tot 14 Junie. Mag ek verder vra dat die Department nou na al die regte vissergemeenskappe aan die kusdorpe, insluitend Paternoster gaan besoek en uitvind wat dit is wat hulle verwag en wil he van die Klein Skaalse Vissers beleid.  
Die DA verwelkom ook die nuus dat Minister Rob Davies gestuur is om die department van Vissereie te red van totale ondergang aan die hand van Agbare Minister Tina Joemat-Pettersson. Graag wil ons die hoop uitspreek dat die take wat hy reeds oorgeneem het nou beter hanteer sal word in die belang van die vissergemeenskappe. Ons kan u verder die versekering gee dat ons hierdie verwikkelinge met valk oe gaan dop hou. 
Voorsitter ek dank u"

Fallacies rule the Minister’s Budget Vote

The Minister's budget vote and the speech in support by Lulu Johnson of the ANC repeat two fundamental falsehoods. The Minister and her department have clearly decided to pretend that they are the saviors of small-scale fishers. In support of this fallacy, they have repeatedly made two false statements.

FALLACY 1. The small-scale fishing policy and subsequent proposed amendments to the MLRA represent the first  ever interventions by the SA government to protect and acknowledge small-scale fishers. FACT: This is false for two reasons. Firstly, the fisheries policy of July 2001 explicitly recognised a specific regulatory regime and rights allocation process for small-scale commercial or artisinal fishers. Second, in 2005, the cluster management system introduced by the General Fisheries Policy further ring-fenced and recognised small-scale fishers thus exclusively allocating more than 73% of all fishing quotas to small-scale fishers.

FALLACY 2. The department intends allocating 70% of fishing rights to small-scale fishers. FACT: In 2005, more than 73% of all fishing quotas were allocated to artisinal and small-scale fishers in the Cluster C and Cluster D fisheries and line fishery.

The proposed draft fishing policies will in fact significantly prejudice and expose small-scale fishers to exploitation and fronting by breaking down the carefully constructed regulatory safeguards that protect small-scale and artisinal fishers under the 2005 General Fisheries Policy. By proposing to allow companies, close corporations, trusts, and co-operatives to access small scale fishing rights will certainly allow directors of large (fishing) corporations, lawyers, teachers, builders, departmental officials and other non-fishers to freely access quotas by hiding behind the veil of corporate identity or blind trusts. So it is unclear how this department and its minister will further protect the interests of small-scale fishers.

The Minister's proposed legal framework will certainly destroy small-scale fishers and allow for large enterprises to usurp small-scale fishing quotas. The budget vote and supporting rhetoric amounts to nothing more than an attempt to continue repeating fallacies in the hope that it becomes the accepted word.

Urgent Notice: Comment Period Extended

The Minister of Fisheries has announced in a series of Gazettes published on 27 May 2013 that the comment period for - 

  • the draft general fisheries policies (2013);
  • each of the 8 draft sector policies (2013); and
  • the draft MLRA amendment bill, 2013
has been extended to 14 June 2013. 

The extension of the comment period has to be welcomed but in our view does not correct the serious legal deficiencies that afflicted the public consultation process which has been seriously prejudicial and exclusionary particularly to small-scale right holders along the west coast and the Overberg region. 

However, one must now again question the Minister and her department on their stated objective of allocating fishing rights before they expire on 31 December 2013. Assuming that no interested party halts the current process by means of an interdict, the department must still overcome the following standard procedural hurdles:

1. Draft application forms have not yet been gazetted for comment. The draft tuna pole application form  which was informally handed out on 27 May 2013 to some 25 persons, indicates that the form is at best weeks away from formal gazetting and a notice and comment period. The only form made available was for "medium term right holders". The new entrant form was not discussed. 

2. The department has not yet gazetted its proposed application fees and grant of right fees for public comment either. Even once the public consultation process has concluded, the draft fees must be submitted to the Minister of Finance for formal approval. 

3. Once the draft policies and application forms have been finalised (assuming mid July), they need to be formally submitted to Cabinet for approval in terms of the Constitution. Technically, the entire suite of policies and forms are submitted to Cabinet's Economic and Social Cluster for initial study and comment. Assuming that this cluster approves the suite of policies and forms without amendment, Cabinet will then meet to debate and approve the policies and forms. In 2005, this process took just over 3 months. 

Based on the current timeframes and assuming that there are no objections at an inter-Ministerial level, Cabinet could approve the suite of policies and forms by the end of October. 

4. The gazette inviting applications could then be published during October and prospective applicants will have to be given no less than 40-60 days to complete the forms and submit these. We will now be at the end of December 2013. This is in any case unrealistic considering the time of the year and end of fishing seasons. 

5. Applications will then be submitted by hand during January 2014 (assuming departmental staff are not on leave). Considering that the department will be relying entirely on its own staff to manually receive and data capture each field of each application form for the purposes of being able to comparatively score and balance applicants by sector,  it is anyone's guess as to how long that will take.

But history and past performance are important indicators. Let us consider the manual but considerably simpler permit allocation process for the boat-based whale watching and white shark cage diving sectors. It must however be noted that the environmental affairs department (which was also in charge of fisheries at that time) utilised the expertise of the Resolve Group to administer and advise on these two processes, which included the use of independent lawyers to evaluate and score the applications. The permit allocation process adopted the long term rights allocation process framework (as well). 

The application process commenced in August 2009. In total, a mere 77 applicants applied for permits. A decision on who would be provisionally granted permits was only announced in June 2010 - 10 months after applications were invited. The Minister finally decided the appeals and permit allocations in April 2011 - almost 2 years after the invitation to apply for the permits was first gazetted. And to date, the Minister's decision on a white shark cage diving permit has been been set aside by the Western Cape High Court and 3 further review applications seem set to follow suit. 

The fisheries department will not be receiving 77 relatively simple whale watching and shark cage diving permit applications. It will help not only the department and its Minister but importantly job-supporting and wage-paying right holders that these unavoidable process realities are recognised and addressed honestly and openly. 

...And let us not forget that the draft policies seek to allocate fishing rights to co-operatives which is presently not permitted under the MLRA. Accordingly, the entire suite of fishing policies is dependent on a Parliamentary amendment to the Marine Living Resources Act, 1998. Cabinet cannot lawfully consider and pass policies that provide for co-operatives until the MLRA is amended by Parliament. Factoring an amendment to the MLRA into the equation, it is impossible to understand how the department can continue to insist that a rights allocation process can be undertaken by December 2013 let alone before the next General Elections in mid 2014. 

The department will be addressing the Portfolio Committee on Fisheries on Tuesday, 10 June 2013 between 9:00 and 13h00 on the rights allocation process. Will it finally recognise these process constraints?  


2013 Rights Allocation Process: An Update

The Fisheries Department held an informal meeting on 27 May 2013 to discuss the draft tuna pole application form. The meeting was chaired by the Department's Craig Smith and proved to be a rather useful meeting aimed at discussing and conceptualising a draft application form for the fishery. The meeting was attended by approximately 25 persons from the pole sector.

The draft application form presented was simply printout of the 2005 application form complete with out-dated references to medium term right holder applicants, right holder conduct during the 2002-2005 period etc. In short, the draft application form like the draft policies are at an early conceptualisation phase. The meeting yesterday, like the consultation meetings on the draft policies before that, was a meeting that can politely only be described as an early conceptualisation meeting; a meeting at which the department itself had little idea as to process, policy or timelines but was seeking industry input and bouncing ideas about prior to a formal consultation process on serious policies and application forms.

From previous rights allocation process experience, this important idea generation and conceptualisation phase usually starts about 18 to 24 months before the allocation deadline ... not 6 months.

So the meeting yesterday referred to the possibility of allocating rights by February 2014. What?

The draft form itself makes it plainly clear that what the department is attempting to do is to fit a VW Citi Golf body onto the engine and chassis of a Bugatti Veyron. You can try and force a fit but its going to look really bad and it's not going to work at all. The draft application form does not relate to the draft policy which, for example, makes provision for the allocation of fishing rights to co-operatives and individuals in the tuna pole fishery. The draft application has not been conceptualised or structured to cater for this obviously. The Schedule Notes and Explanatory Memoranda were designed for a process that simply is not the present one. The mismatch and irrelevance are profound.

Again, as is the case with the draft policies, it is simply not possible to force fit the current badly planned, late and visionless process over the framework of an allocation process that was designed over a period of 3 years and underscored by a comprehensive IT and software foundation designed specifically to receive, read and extract specific data from pre-identified fields in each sector form so as to immediately provide each decision-maker with a comprehensive profile of all applicants in each sector.

Where is the department's own IT system for this process? How will they receive application forms, data capture all the applicable data so as to understand the various quintiles and means of right holder transformation levels, investments, exploitation levels and so on? What is understood is that the department is going to rely on its own staff in resource management to manually input each data field into an Excel spreadsheet! Can you imagine the error rate for such a manual and tedious process? How long will that process take assuming a relatively conservative estimation that between 5000 and 10,000 persons will apply fishing rights? And if they are going to use their own internal staff for this process, who is going to process and administer the day-to-day work of receiving and issuing fishing permits, export permits, licences etc?

One can only conclude again that based on the discussions on the draft application form presented to the 25 tuna pole right holders that attended yesterday's meeting, a fair and proper rights allocation process is many, many months away, maybe more.

We read from the draft MLRA amendment bill many strange and bizarre things. One of the more bizarre and confused provisions is the idea by the Minister of Fisheries that persons engaged in "non-consumptive use" will have to apply for a "right" to do so under section 18 of the MLRA. 

Now, of course, the Minister does not define what "non-consumptive use" entails.  However, assuming  that "non-consumptive use" actually refers to what we in the industry refer to as boat-based whale and dolphin watching (ie watching marine mammals) and white shark cage diving, then the Minister of Fisheries is going to really upset the Minister of Environmental Affairs because she claims that she is in charge of whales, turtles, dolphins and those tourist attracting great white sharks. 

And the Minister of Environmental Affairs will have good reason for being angry because just last year,  Tina Monica Joemat-Pettersson said on oath before the Western Cape High Court that she has nothing to do with these mammals and sharks, confirming in magnificent English (not that nonsense used in the draft policies and the MLRA amendment bill) that "[i]n line with the provisions of the proclamation, I do not consider that (ie the regulation of whale watching and shark cage diving) to be within the purview of my powers and functions but rather within those of the [Minister of DEA]". 

Eish, and now she wants to not only require whale watchers and shark cage divers to have a simple section 13 permit, they must apply for section 18 rights as well. 

To confound the whale watching and white shark diving sectors even further, the Minister of Environmental Affairs is presently seeking public comment on a draft set of regulations published under the Biodiversity Act (and not the MLRA) that will incorporate the regulation and management of these sectors under the draft Threatened and Protected Species Regulations.

So who is actually in charge of regulating the BBWW and WSCD sectors? The Minister of Fisheries or  the Minister of Environmental Affairs? Can industry choose? 

(For the sake of the sharks, turtles, dolphins and whales, we hope that its not tantrum tina. She may just decide to relocate some whales and turtles to Hartebeespoort Dam in her bid to equitably spread the fish away from the Western Cape). 

Comment on the Draft MLRA Amendment Bill

Feike has submitted its comments on the draft MLRA Amendment Bill. Our comments are quite lengthy and legally technical. A copy of our comments are available on request. We provide below a summary of our principal concerns and objections.

1. The comment period is hopelessly too short. South African law requires consultation on such matters to be fair and adequate. The draft bill is extremely lengthy (48 provisions long) and complex and affects a number of very different constituencies - commercial, small-scale, subsistence and rural fishers, recreational fishers and fish farmers. Further, the draft bill is also published for comment at the same time the fishing industry is considering a raft of fishing policies and preparing for the allocation of long term fishing rights. The comment period of less than 30 days is unlawful as it is contrary to the requirements of the Promotion of Administrative Justice Act. 

2. According to the department, it intends to submit the finalised draft bill to Parliament by August 2013. On the department's own version, it is impossible that the draft bill could be considered, voted on and passed into law before the end of 2014 especially since Parliament will have to undertake its own consultation processes which will necessarily have to involve taking the draft bill (which must still be translated into at least Afrikaans, isiZulu and isiXhosa) to rural and local constituencies. And remember that we are no more than 12 months from the next General Elections. It is even more unlikely that Parliament will consider a bill that removes all reference and mention to "subsistence fishers" of which there are more than 7000 in KZN and the Eastern Cape. 

4. Without the amendment bill being passed into law (ie passed by Parliament and actually signed into law by the President), the current draft policies that make provision for the allocation of fishing rights to co-operatives cannot be approved by Cabinet as to do so will be unlawful as the MLRA does not allow for fishing rights to be allocated to co-operatives. 

5. It is also our view that the Minister of Fisheries cannot unilaterally amend the MLRA as she "shares" administrative powers with the Minister of Environmental Affairs. Accordingly, any amendment to the MLRA must be submitted jointly to Parliament's fisheries and environmental portfolio committees for consideration! This will necessarily delay any amendment process even further.

6. The extreme bias toward small-scale fishery objectives and principles to the complete exclusion of commercial fisheries is not only unbalanced but contradictory to the National Development Plan.

7. The draft bill also deletes reference to aquaculture rights and subsistence fishing without any transitional provisions to cater for the ongoing regulation and management of these sectors. These are serious flaws could cause serious damage to the aquaculture sector in particular and force subsistence fishers into criminality and poaching.

8. The draft bill proposes the creation of a "Review Board". The proposed “review board” is ill-advised as it will only compound the already slow and bureaucratic administrative appeals process. It will only create an unnecessary and unwarranted layer of bureaucracy that is not needed. The creation of a “review board” should be abandoned.

Our conclusions are that -

  • The draft bill is extremely poorly drafted and requires substantial editing and redrafting.
  • The draft bill seeks to substantially hinder effective decision-making processes by creating unwarranted and ill-advised layers of bureaucracy such as the review board.
  • Fisheries management requires rapid, transparent and regular decision-making and the codification of rules and amendments. In this regard, the draft bill ought to recognise the promulgation of “policy circulars” to fast-track policy amendments and ensure that fishery management practices remain relevant and in line with best practices.
  • Further, it is uncertain to what extent the 1998 Fisheries Regulations have also been reviewed and will be amended. The MLRA cannot be amended without concurrent and substantial amendment of the Fisheries Regulations.
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